Wednesday, October 14, 2009

When the Answer is No: Constitutional Protection for Faith Healing?

The tragic case of Kara Neumann highlights one of the problems with robust protection for the free exercise of religion. Kara died of untreated diabetes because her parents chose to pray rather than take her to the doctor. Both have been convicted of second degree reckless homicide. How does their prosecution square with robust protection of religious freedom?

The difficulty with strong free exercise protection is not simply how to cabin the freedom (by saying that the state may restrict it only if necessary to serve a compelling state interest) but how to define what constitutes a religious claim and to assess the strength of the religious claim asserted. The problem is that the notion of religious freedom cuts against the evaluation of the strength or reasonableness of religious claims and that leaves us with a potential universe of claims that is limited only by Revelation or imagination. That is no limit at all.

This is, I think, one of the reasons that the United States Supreme Court has not afforded generous protection to free exercise, holding that neutral laws of general applicability not aimed at suppressing religious exercise are not subject to heightened scrutiny. But Wisconsin interprets the protection of religious belief and freedom of conscience included in its Constitution differently. It does afford strict scrutiny to the substantial burdens on the free exercise of religion.

State law prohibits charges of child neglect based solely on healing by prayer. But it provides no such exemption for more serious charges such as reckless homicide. There are, I think, two principal questions.

First, must the state permit parents to heal by prayer? My own view is that the state has a compelling interest in protecting life and that interest can justify interfering in parental prerogatives.

Second, does a more robust protection for religious free exercise require any - or a broader - exemption from criminal prosecution? It is, after all, one thing to say that one has no right to deny medical treatment for one's child and another to say that, if one does so, one should be prosecuted. Not everything that can be prohibited (or prevented) ought to be criminalized.

Perhaps Wisconsin has it right. Maybe the state's interest in prosecuting such conduct does not become compelling until it inflicts the more substantial injuries that support a charge other than child abuse, such as reckless homicide or the infliction of substantial bodily injury.

Cross posted at Marquette University Law School Faculty Blog.


Anonymous said...

Very interesting comments, as usual. I'm left wondering, however, what purpose is served by prosecuting and punishing persons who act on religious conviction. If the person presents an ongoing threat (trying to slay all infidels, for example) that person must be stopped and perhaps confined to protect others. But acts of religious conviction are utterly resistant the triad of penology; rehabilitation, retribution and deterence. The believer cannot defy the will of his God, and using the force of the state to act preemtively might only provoke a more violent response (for example, killing a child rather than giving her over to some Antichrist.)

Anonymous said...

These people relied on there belief and the child died.

Other people rely on believing in medicine and die, but after they spend 1,000's and maybe 100'000s of dollars.

Are you saying that the state has an interest in forcing you to believe in medicine?

Anonymous said...

Perhaps Wisconsin has it right? Talk about closing the barn door after the horse is gone. Perhaps we should hold off on charging attempted homicide until there's actually a body on the ground.

Protecting children from neglectful and abusive parents should take the highest priority. Especially when the countervailing interest is something as flimsy as the parents' right to practice their retrograde and patently ridiculous "religion."

It sickens me to believe anyone could seriously suggest that in such a situation the state should hold out for "reckless homicide or the infliction of substantial bodily injury" before stepping in to protect the child.

Anonymous said...

Anon 1:16p:

How about reducing recidivism? No other children can be harmed by these true believers while they're locked up. I'm also unconvinced that there's no deterrent effect. There are plenty of things people might like to do for reasons of their faith but from which they're dissuaded by the legal consequences.

Anonymous said...

Unless there is a continuing threat to other children - other diabetic children or a genetically linked disease - there is no reason to separate the family. In fact, all evidence suggests that separating the family in cases like this would be the cause of harm. That is not to say that such a family could not be subjected to monitoring of some sort, and family monitoring is not unique to cases where a child has died, but imprisoning a parent seems unwarranted.

Regarding deterence, there is really no way to know if truely religiously motivated behaviors are curtailed by legal consequences. But even if so, who is to decide which behaviors are appropriate for state-sponsored suppression? The very idea of subjecting religious belief to some arbitrary test, absent a clear threat to others, is (you should pardon the expression) anathema in the US.

Anonymous said...

Does your religion compel to ingest mind-altering substances? Are you serious?

You're saying that parents sitting on their hands (or perhaps holding them together in prayer) while a child dies a slow and painful death is no reason to separate a family!? I hate to break it to you but we, as a society, can and do separate families for a hell of a lot less than the death of a child. Even if your meth habit doesn't pose much of a threat to your kids and even if the kids learned their lesson from the first beating (so that now there's no threat of another), you'll lose your kids. And rightly so. I don't know if if these model parents have other kids but if they do, they should lose them. If for no other reason than to keep them from indoctrinating the dead child's siblings with this garbage.

As for deterrence, I'd prefer to err on the side of caution and hope that locking up these imbeciles deters others. Even if the proof is of that is lacking.

And, oh yeah, how does locking these people up fail to satisfy the retribution aspect of your triad. Isn't that reason enough to put them away?

Anonymous said...

I don't know where it fits in the triad of rehabilitation, retribution, and deterrence -- maybe it's all three -- but one principal goal of the criminal law is to teach people society's expectations. The law tells people like these, it's OK to pray, but society expects you to seek medical care for your sick children. This is our norm. As a member of our society this is how you must behave.

Anonymous said...

In many ways Wisconsin has been a progressive State, a state that has generally looked after those less fortunate and unable to protect themselves. Wisconsin needs to protect children from people like the Neumanns, who believe prayer is the answer to all ailments and allow a young child to die a needless death because illness is a result of sin!
We protect children from excessive and abusive punishment within our Children's Code, even when their parent's believe God compels them to met out extreme physical why would we not protect innocent children when their parent(s) cause them harm through prayer?
In a very troubling move, Senator Lena Taylor is looking for support for legislation "creating an affirmative defense for parents or guardians when their conduct is in good faith and is a reasonable use of spiritual, prayer or religious treatment in lieu of medical treatment." The legislation would also give a presiding judge 9 factors relevant to determining whether the use of spiritual, prayer or religious treatment in lieu of medical treatment was reasonable.
Wisconsin's children do not need this legislation which is apparently being pushed by the Christian Science Church.
Rep. Berceau is introducing legislation that would eliminate the current exemption to prosecution for parents & guardians who elect spiritual treatment in lieu of medical or surgical treatment for a child. This is the right thing to do!
Children are not chattel property...they are held in trust by their parents, who must provide them with care and treatment that is in THEIR best interests, not in the interests of the parent(s).
Mr. Neumann's tirade in court attempting to justify his outrageous and deadly behavior toward his daughter is an example of how some religious fanatics view their parental obligations. In most cases, medical and social service providers will not know how a child is being "spiritually treated" until the child is critically ill or dead. These people should not be given the benefit of an "Affirmative Defense" that can be used when its too late for the child. These parents must know from the start that they face criminal prosecution for negligent or reckless injury or death to a child and that there are no defenses to their kind of treatment.
Unlike the Christian Science Church, children are not organized and don't lobby legislators or contribute to their re-election campaigns...citizens must make it clear to their legislators that children are to be protected...they are not religious or political pawns.

AnotherTosaVoter said...

Let's use some common sense and simply drag these people before a firing squad and execute them, along with every other child abuser.

If your silly superstitions lead to the death of a child, then you are not capable of living in a modern, organized society. Maybe we provide these people the option of being deported to the Amazon or executed, come to think of it.

AnotherTosaVoter said...

By the way Rick, I'd love for you to answer my questions in the Obama Nobel thread.


Anonymous said...

What should we do with parents that take their children to the doctor and they die?

Anonymous said...

Anon 12:01, what we already do. Mourn and make sure the doctor did all he or she could.

On the other hand if they sit there and say affirmations to a superstition, they should be promptly executed and buried in a landfill.

John Foust said...

Is this question somehow special and differenet because religion is involved? Would you come to the same conclusion about parents who treated a sick child solely with homeopathic dilutions? Saying we have religious freedom is one thing. Claiming that prayer is an effective method for treatment of disease is another. I say prayer is the same thing as inaction, as no one has brought forth any evidence to show otherwise. If I said that cancer could be cured by music therapy, you'd ask for proof.

As with anything a parent does, sometimes you get lucky. In a world with spontaneous remission of cancers, fevers that break and end on their own, and infections that a healthy body can fight and win, some parents might be deluded into thinking that prayer works.

If you want the state to have an interest in protecting children from harmful parenting, then we'll need to make judgments and draw lines about the efficacy or harm of various parental action and non-action, and yes, it might not make sense to try to explicitly prohibit all the stupid things people can think of.

And what's with all the anonymi here?

Anonymous said...

"they should be promptly executed and buried in a landfill."

Atheism never changes and is the religion it followers want to run the country.

Anonymous said...

Anon 5:23 AM:

The crime for which I want them executed and unceremoniously disposed of is the willful neglect of their child, not the practice of religion.

You want to follow your silly superstitions, go for it, so long as it doesn't lead to someone's injury or death.

I can point you towards plenty of evidence that religious loons favor the death penalty and are hardly troubled when innocent people die as a result. See: Texas, state of.

Anonymous said...

anon 6:48 AM -

I can point to well over 100,000,000 innocent people killed by intolerant atheist called communist in Russia and China.

This by far has out done everything combined by different religions throughout history.

It appears your self righteousness blinds you to the short comings of your own beliefs.

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